Harvard professor Jonathan Zittrain says the right to be forgotten is creating a ‘swiss cheese internet’ full of holes.
Photograph: Getty Images

Imagine, 25 years ago, someone telling you: we really need to redress this massive social ignorance that, when you meet someone for the first time, you don’t know everything about them. What we ought to do is assemble a giant database. On everyone.

Brilliant idea. But there are a couple of provisos, they add. This database will be sourced from whatever scraps of information are lying around about you – whether carefully crafted, or pulled from the streets. The product of your life’s work; or just some odd thing you once said or did, long ago, somewhere that the database decides to rank highly and eternally.

The database will contain the most intimate, embarrassing, destructive things. But they will be mere flecks in a torrent of utility. And because of that: you have no rights or say over the database. Your entry – and that of everyone else who can’t afford a reputation manager – is subject to the whims of the untouchable logic of the machine, scraping the sticky, pocked underbelly of the web.

Some would call that idea visionary. Others would call it nuts. But it’s what we’ve got. It’s called a search engine. Or, for most of us, in the monoculture of our digital universe: Google.

Posner’s argument was that some meaningful rights to delist old, irrelevant or incorrect information from monolithic databases are important, in order to give us a small, imperfect measure of privacy and dignity. They offer a minor speed bump on asymmetric routes of power, like the one that says you have no rights or say over Google’s presentation of search results.

Posner called on his audience to imagine the people at the heart of the database: a 17-year-old boy wrongly arrested for selling drugs; a depressed single mum who files for bankruptcy, giving her a fresh start; a married couple with an acrimonious divorce. Each case involves true events. They are public to some extent, but at the same time private. Not everybody in the world or even outside their area hears about these events. When they move on, privacy law protects these people. Or it did. Before Google.

Lowest common denominator net

One of Posner’s opponents was Jonathan Zittrain, another distinguished cyberlaw professor, based at Harvard University. He drove to the other extreme. Even if we might see some merit in Europe’s data laws, Zittrain is not at all happy about them being used to carve holes out of Google search. To counter the database of ruin argument, he says we are creating a “swiss cheese internet”.

The nub of Zittrain’s concern is that the practice of shaping what stays and what goes from the database is hopelessly individualistic. By allowing the delisting of information that is incorrect, outdated or harmful for individuals, who knows what else will follow. It sets us on a path, Zittrain claims, where the internet becomes the lowest common denominator result of what all the world’s countries and courts are prepared to leave behind.

The only thing stopping Google basically running the world, according to Zittrain, is that even Google doesn’t know what comes up in Google search results.

Great. So we’re all going to ruin, but don’t worry, because Google is “dumb”. What a frail hope.

World-weary pilgrims make their way to the Greek river of forgetfulness in John Roddam Spencer Stanhope’s ‘The Waters of Lethe’ (1880). Should the internet be more like that forgetful river? Photograph: Don McPhee/Manchester Art Gallery

The French authority’s justification is that Google’s way of complying with successful delisting requests undermines true protection, by enabling a trivial workaround (though it should be noted that the “friction of the click” in getting to Google.com has mysteriously and materially increased in the last six months). Google’s enforcement is, in short, passive-aggressive.

In a blog-post, Google’s privacy counsel claims “respectful disagreement” with the French, arguing similarly to Zittrain that the French approach would create a “race to the bottom in internet regulation” and is “disproportionate and unnecessary”. The French authority has dismissed the arguments as largely political, not legal. And in fact, when it comes to the law, Google has a massive thorn in its side: intellectual property.

Google’s “swiss cheese” argument was given short-shrift: “Google raises the spectre of it being subjected to restrictive orders from courts in all parts of the world, each concerned with its own domestic law. The threat of multi-jurisdictional control of Google’s operations is, in my view, overstated,” said Justice Groberman on behalf of the court. “It is the worldwide nature of Google’s business and not any defect in the law that gives rise to that possibility. Courts must consider many factors and exercise considerable restraint in granting remedies that have international ramifications.”

The major restraining factor the Canadian court highlighted was the core value of freedom of expression. “Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made”, it said. Stripping away trademark law’s inherent tensions, it continued: “It has not been suggested that the order prohibiting the defendants from advertising wares that violate intellectual property rights offends the core values of any nation”.

You can’t solve the unknown

This line from the Canadian court gets to the heart of our dilemma with local laws and the global internet. The question is whether the right in issue – copyright, trademark, personality, privacy, freedom of expression – has a wide enough territorial scope to justify global relief. And embedded in this are a wide variety of value judgments and difficult questions.

The complex challenges involved in global enforcement of laws demand us to ask what kind of society we want to live in. Are trademark and copyright law really that black and white? Is it appropriate for global brands to block sites on the other side of the world, which are neither ambiguous in their origin or misleading to consumers, and may engender creativity and meaning in their own right? Can we balance, with equal force, human rights as much as economic rights?